Jurd v The King
[2024] VSCA 224
•7 October 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0060 |
| DAVID JURD | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 August 2024 |
| DATE OF JUDGMENT: | 7 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 224 |
| JUDGMENT APPEALED FROM: | DPP v Jurd (County Court of Victoria, Judge Higham, 7 March 2024) |
---
CRIMINAL LAW – Appeal – Sentence – Trafficking drug of dependence, possession of drug of dependence, knowingly dealing with proceeds of crime, handling stolen goods and related summary offences – Applicant sentenced to drug and alcohol treatment order – Custodial sentence activated on basis that applicant unwilling to comply with order – Whether judge gave adequate reasons – Reasons insufficient to expose path of reasoning – Leave to appeal granted – Appeal allowed – Sentence set aside.
Sentencing Act 1991, ss 18X–18ZS.
Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131, considered.
---
| Counsel | |||
| Applicant: | Ms G Connelly SC with Ms A Balkin | ||
| Respondent: | Ms K Hamill with Mr E Fryar | ||
Solicitors | |||
| Applicant: | Rolfe Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA:
I agree with the orders proposed by Niall JA and his Honour’s reasons therefor.
NIALL JA:
Introduction
On 18 October 2022, the applicant, now aged 33 years,[1] pleaded guilty to a number of serious drug charges, namely one charge of trafficking a drug of dependence,[2] one charge of possession of a drug of dependence,[3] one charge of knowingly dealing with proceeds of crime,[4] one charge of handling stolen goods[5] and three related summary offences.
[1]Date of birth: 7 April 1991.
[2]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[3]Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[4]Contrary to s 194 of the Crimes Act 1958.
[5]Contrary to s 88 of the Crimes Act 1958.
Following a Drug Court determination hearing on 10 October 2022, Judge Gaynor sentenced the applicant on 18 October 2022 and placed him on a Drug and Alcohol Treatment Order (‘DATO’) for a period of 45 months. The custodial aspect of the DATO, which is not served unless activated,[6] was as follows:
[6] Sentencing Act 1991, s 18ZE(1).
Charge Offence Maximum Sentence Cumulation Indictment M11928942 1 Trafficking in a drug of dependence 15 years’ imprisonment 3 years Base 2 Possession of a drug of dependence 1 year imprisonment or 30 penalty units 12 months 3 months 3 Knowingly dealing with proceeds of crime 20 years’ imprisonment 12 months 3 months 4 Handling stolen goods 15 years’ imprisonment 9 months 1 month Related Summary Offences 20 Possess prohibited weapon[7] 240 penalty
units of 2 years’ imprisonment
2 months N/A 22 Possess Schedule 4 poison[8] 10 penalty units Fined $400 N/A 25 Fail to comply with direction to provide
information or assistance[9]2 years’ imprisonment 6 months 2 months [7]Contrary to s 5AA of the Control of Weapons Act 1990.
[8]Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981.
[9]Contrary to s 465AAA(4) of the Crimes Act 1958.
TotalEffectiveSentence: 3 years and 9 months’ imprisonment Non-ParolePeriod: N/A Section6AAAStatement: N/A Otherrelevantorders: 1. Disposal order
2. Two forfeiture orders
As things transpired, the applicant’s compliance with the treatment and supervision conditions was poor. The prosecution applied to cancel the order on a number of grounds, including that the applicant had supplied a forged medical certificate. A judge of the County Court cancelled the treatment and supervision part of the order and partially activated the custodial component.
The effect of the order is revealed in the following table:
Charge Offence Maximum Sentence Cumulation Indictment M11928942 1 Trafficking in a drug of dependence 15 years’ imprisonment 1 year 8 months (aggregate) N/A 2 Possession of a drug of dependence 1 year imprisonment or 30 penalty units 3 Knowingly dealing with proceeds of crime 20 years’ imprisonment 4 Handling stolen goods 15 years’ imprisonment Related Summary Offences 20 Possess prohibited weapon 240 penalty
units of 2 years’ imprisonment
As above N/A 22 Possess Schedule 4 poison 10 penalty units 25 Fail to comply with
direction to provide information or assistance
2 years’ imprisonment TotalEffectiveSentence: 1 year and 8 months’ imprisonment Non-ParolePeriod: 1 year
From that sentence, the applicant seeks leave to appeal. In summary, for the reasons that follow, I would grant leave to appeal, allow the appeal on ground 3, set aside the sentence (so that the applicant will be restored to the DATO) and remit the determination of the prosecution’s application to cancel the DATO to a judge of the Drug Court Division of the County Court.
Circumstances of the offending
On 11 September 2021, police attended an apartment in Melbourne to execute a search warrant.[10] The applicant’s co-accused, Emily Arena, had rented the premises through Airbnb. Police entered the premises and located the applicant and Ms Arena in the main bedroom.
[10]The following description of the circumstances of the offending is drawn from the summary of prosecution opening dated 29 July 2022.
In their search, police located several drugs in varying amounts around the house as well as drug paraphernalia:
(a)several drugs in varying quantities including methylamphetamine (230.2 grams), MDMA (42.7 grams), MDA (23.7 grams), ketamine (144.8 grams), cocaine (4.4 grams), cannabis (64.1 grams) and 1,4-butanediol (37.5 grams) (charge 1);
(b)amphetamine (2 grams), buprenorphine (0.6 grams), boldenone (26.1 grams), testosterone (17.6 grams), oxymetholone (26.9 grams), trenbolone (9.7 grams), stanozolol (13.2 grams) and drostanolone (47.1 grams) (charge 2);
(c)$33,500 AUD cash wrapped in bundles (charge 3);
(d)various Schedule 4 poisons — Sildenafil, Tadalafil and Anastrozole (charge 4);
(e)a pair of knuckle dusters and a fantasy style sword (summary charge 20);
(f)four Victorian driver’s licences, a Commonwealth bank card, two Medicare cards, a Medibank card as well as fabricated personal information of five individuals (charge 4); and
(g)a white Samsung A21 mobile phone.
Both the applicant and Ms Arena denied ownership of the mobile phone and declined to provide a password to unlock it (summary charge 25).
Police reviewed the applicant’s phones, which revealed multiple conversations in various applications between him and others relating to trafficking of multiple types of drugs of dependence.
On his plea of guilty to the drug offences, on 18 October 2022 the applicant was sentenced to the DATO for a duration of 45 months pursuant to s 18Z of the Sentencing Act 1991. It appears that the applicant’s engagement and progress were positive in the early stages, with a number of consecutive clear screens.
From perhaps around April 2023, there appears to have been a deterioration in compliance. On 20 June 2023, an application to cancel the order was made.[11] That application was made on two grounds:
(a)the applicant was no longer willing to comply with one or more conditions attached to the order;[12] and
(b)the continuation of the treatment and supervision part of the order was not likely to achieve one or more of the purposes for which the order was made.[13]
[11]Later amended on 28 June 2023.
[12]Sentencing Act, s 18ZP(1)(c).
[13]Ibid s 18ZP(1)(d).
In a progress report prepared by his case manager on 19 July 2023 it was reported that, amongst other things, between 14 November 2022 and 20 February 2023 the applicant had completed a total of 38 drug screens, 36 of which returned a positive result for drug use. Between 22 February 2023 and 15 June 2023, the applicant completed 23 screens but failed to produce a further 16 screens, with eight of them being considered as failures to attend. Between March and April 2023, there was a period of abstinence from drugs. It was alleged that, on 16 June 2023, the applicant provided a doctored medical certificate from his general practitioner providing evidence to support an absence from attendance at drug screens. It was this document that formed the basis of the application to cancel.
At a hearing held on 20 November 2023, the judge said that he was satisfied that the applicant had ‘demonstrated his lack of willingness to continue to comply with the order’. The judge said that this finding gave rise to a discretion. The judge set out his expectations that there would be no more medical certificates to avoid attendance or testing, no missing appointments and that the applicant would ‘admit every substance’. He added that if the next four incentive and sanctions summary sheets showed that the applicant had missed testing or any non-admissions of substance use, the judge would cancel the order. The judge said that it was ‘all about discretion’. The matter was adjourned to 15 December 2023.
The matter was further adjourned to 18 January 2023. It appears that on 9 January 2024 the applicant was admitted to hospital with a gunshot wound and that he was discharged on 15 January 2024.
The matter returned to court on 6 February 2024 when the judge considered an updated ‘incentives and sanctions summary’, which records rewards for good compliance in the form of a reduction in the period of the treatment or sanctions in the form of additional days. At the hearing, the judge was told that the applicant had had two weeks of clean drug screens for three weeks, which was the longest period of abstinence for over 12 months. The judge observed that the question was whether it was genuine or driven just by a desire to avoid prison. The respondent submitted to the judge that, in the period up to 9 January 2024, there had been complete non-compliance with the order by non-attendance at appointments.
The judge said that there was a need for some resolution and that he was ‘fully intending to cancel’ the DATO. In the process of adjourning the application, it came to the judge’s attention that the applicant’s co-offender, who had been made the subject of a non-association condition under the DATO, was present in court in breach of the order. It was plain that her attendance in company with the applicant was a breach of the order which, understandably, the judge noted was a matter of considerable concern. The matter was further adjourned to 9 February 2024.
On 9 February 2024, the judge made a ruling in which he said that he had found that the applicant ‘demonstrates that he was not willing to comply with the order’ and that he had provided him two opportunities to show by his conduct that the judge should exercise his discretion not to cancel the order. The judge noted that there had been recent clear screens and an ‘apparent reframe’, which he said the applicant had attributed to his mother who was in court, but said that ‘the progress of the matter speaks for itself’.
The judge said that he did not cancel the DATO lightly but noted that with the order comes responsibilities and that he found the applicant’s continued association with Ms Arena to be ‘so concerning’.
The matter was adjourned to 7 March 2024. At that hearing, the judge commenced by observing that he had cancelled the order on 9 February 2024, having earlier made a finding in respect of the applicant. Very brief submissions were heard, with the respondent and applicant having filed brief written submissions on the extent to which the sentence originally imposed by Judge Gaynor should be activated.
On the activation hearing, the applicant accepted that his poor behaviour led to his order being cancelled but submitted that the time spent on remand and the order, as well as his level of compliance prior to its cancellation, must be taken into account. Counsel for the applicant said that he assumed that the judge would fix a head sentence with a non-parole period.
No oral submissions were made by the prosecution in court although written submissions were tendered. The prosecution submitted that the following factors ought to be taken into account when assessing the length of the remaining custodial part to activate:
(a)Duration: the order commenced on 18 October 2022 and was cancelled on 9 February 2024. The applicant spent 21 days on remand serving sanctions. It was submitted that time spent under the order ought to be taken into account in a general way. The applicant’s compliance must be weighed against any negative considerations, such as lack of effort or commitment.
(b)The applicant’s attitude and engagement as outlined in the progress report dated 19 July 2023.
(c)No further offending had been committed on the order.
(d)Drug use: the applicant maintained some periods of abstinence from drugs and alcohol. It was noted there were some screening appointments not attended.
(e)Mental health: the applicant had struggled at times with his substance use and recovery while on the order.
Sentencing remarks
In brief oral reasons, the judge said that on 20 November 2023 he had made a determination under s 18ZP(1)(c) of the Sentencing Act that the applicant had demonstrated an unwillingness to comply with the order on the basis of a forged medical certificate.[14] The judge said that he had made the decision that he would not then cancel the order as he wanted to give the applicant an opportunity to respond and to persuade the judge to exercise his discretion in favour of not cancelling the order.[15] The judge then said:
The matter came back in front of me on 15 December, by which time you had unfortunately again served sanctions. I again adjourned the substantive hearing to 18 January 2024 to give you another opportunity to still persuade me by your compliance that I should exercise my discretion and not cancel your order. Unfortunately, in that intervening period, you were admitted to hospital with gunshot wounds and then on 19 January 2024, you were again sentenced to seven days of sanctions and further adjournments were caused by the unfortunate ill health of your legal representative. On 9 February 2024 your order was cancelled.
I reread the progress report, Exhibit 2, Mr Jurd, it is a bit of an old report now. It is dated 19 July 2023 and what is striking from that is that [sic] how from 18 October to 11 November, all of your screens revealed no substance use. You were producing clear screens and as to your progress, I note that you moved onto Phase 2 on 24 March 2023. So you had come out, you were not using. There was then a bit of a lapse, which you were able to turn that around and the nature of your engagement impressed your clinical team and the court to the fact that we wanted to move you through.
It does seem that thereafter, when you were put back down on Phase 1 because of the submission of a forged medical certificate your use became constant. I can see your emotional distress. I know how disappointing that would have been to your mother and your father who have always come and supported you. But it does seem to me that the progress that you made should be given a suitable recognition in terms of tempering the remaining custodial term, which on a broad analysis is roughly 29 and a half months.
So, doing the best I can, Mr Jurd, in recognising that early progress on the order, I am going to order that you serve 20 months of the remaining period and I will fix a non-parole period of 12 [months]. [16]
[14]DPP v Jurd (County Court of Victoria, Judge Higham, 7 March 2024) [1].
[15]Ibid.
[16]Ibid [2]–[5].
Judge’s report
The applicant filed his application for leave to appeal against sentence on 4 April 2024. On 26 July 2024, the judge provided a written report to this Court.
In that report, the judge set out some of the chronology of events commencing with the application to cancel the DATO on the basis of a forged medical certificate. The judge noted that between 31 July 2023 and 20 November 2023 there were five adjournments at which the judge emphasised that it was in the applicant’s interest to demonstrate improved ongoing compliance. The judge recorded that on 20 November 2023 he found the ground under s 18ZP(1)(c) made out but adjourned the matter ‘to allow the applicant an opportunity to demonstrate, by his improved order compliance, that [the judge] should exercise his discretion and not cancel his order’.[17]
[17]Citation omitted.
The judge noted the attendance of Ms Arena at court on 6 February 2024 in breach of the order. The judge recorded that on 9 February 2024 the order was cancelled and, although he did not give detailed and lengthy reasons, the judge added:
… I would respectfully submit that no one could have been in any doubt as to my reasoning, namely: a finding under [s] 18ZP(1)(c) having been made, the applicant had failed to establish a basis for the exercise of the court’s discretion in his favour. It was a decision based upon multiple factors: … persistent and ongoing order non-compliance, serving of sanctions pursuant to the [incentives and sanctions] [f]ramework, the concerning incident of his hospitalisation with gunshot wounds, and his flagrant disregard of his order conditions. The appearance of Ms Arena in court was not the sole, or even a primary reason for the cancellation of his order.
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1.The total effective sentencing and non-parole period fixed are manifestly excessive.
Particulars:
a)The learned [s]entencing [j]udge gave manifestly insufficient weight to the principle of totality.
b)The sentence imposed is more severe than necessary to achieve the purposes for which the sentence was imposed.
c)The learned [s]entencing [j]udge gave manifestly insufficient weight to the rehabilitation of the [a]pplicant.
2. The sentence imposed is a crushing sentence.
a)The learned [s]entencing [j]udge gave insufficient consideration to the impact of imprisonment on the [applicant] and prospects of rehabilitation.
At the hearing of the application for leave to appeal, leave was sought to rely on two further grounds which were in the following form:
3.The learned sentencing judge erred in failing to provide any or adequate reasons for:
a) the cancellation of the drug treatment order;
b) the sentence activated upon cancellation.
4.The exercise of the decision to cancel the order miscarried because:
a) [T]he judge misdirected himself as to the findings necessary to enliven the discretion to cancel the order.
b)[T]he judge did not consider any of the actions available under s 18ZL before determining to cancel the order, in circumstances where cancellation is an outcome of last resort.
c) [T]he judge did not satisfy himself of the circumstances of s 18ZP(1)(c) at the time of making the order to cancel.
d) [T]he judge took into account an irrelevant consideration, namely hospitalisation for treatment from being the victim of a shooting.
e) It was not open in all the circumstances to find on 20 November 2023 that s 18ZP(1)(c) had been satisfied.
f) It was not open in all the circumstance to find on 9 February 2024 that the applicant was no longer willing to comply with one or more conditions attached to the order.
Leave was given to allow the application to be amended to include the further grounds, with both parties being given the opportunity to file written submissions in relation to them. The judge’s decision to cancel the DATO is a ‘sentence’ within the meaning of s 278 of the Criminal Procedure Act 2009, being an order made under pt 3 of the Sentencing Act other than an order incidental to or preparatory to the making of such an order,[18] so that it is capable of being the subject of the application for leave to appeal against sentence.
[18]Criminal Procedure Act 2009, s 3 (definition of ‘sentence’).
The statutory provisions
It is useful to refer to some of the key provisions of the Sentencing Act relating to DATOs.
Section 18X of the Act sets out the purposes of a DATO, which include facilitating the rehabilitation of an offender by providing ‘a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime’.[19] Only the Drug Court may make a DATO.[20]
[19]Sentencing Act, s 18X(1)(a).
[20]Ibid s 18Y. ‘Drug Court’ is defined in s 3 of the Sentencing Act to mean the Drug Court Division of either the Magistrates’ Court or the County Court.
Section 18Z sets out the circumstances in which a DATO can be made. These circumstances include that the offender has pleaded guilty to a relevant offence and that the Drug Court is satisfied on the balance of probabilities that the offender is dependent on drugs or alcohol and that the dependency contributed to the commission of the offence.[21] Section 18Z(3) provides that the Drug Court must not make a DATO unless it is satisfied in all the circumstances that it is appropriate to do so and the offender agrees in writing to the making of the order and to comply with the treatment and supervision part of the order.
[21]Ibid s 18Z(1)(a), (c).
A DATO consists of two parts: the treatment and supervision part; and the custodial part.[22] The latter part is provided for in s 18ZD,[23] which relevantly requires the Drug Court to impose the sentence of imprisonment it would have imposed had it not made the DATO but, in doing so, it is not permitted to fix a non-parole period.[24] The treatment and supervision part of a DATO consists of the core conditions specified in s 18ZF and program conditions which are selected from the conditions identified in s 18ZG.[25]
[22]Ibid s 18ZC(1).
[23]Ibid s 18ZC(3).
[24]Ibid s 18ZD(2), (3).
[25]Ibid s 18ZC(4).
The core conditions include that the offender must not commit an offence punishable on conviction by imprisonment, must attend the Drug Court when required and must undergo treatment for dependency as specified in the order.[26]
[26]Ibid s 18ZF(1)(a), (b), (d).
The optional program conditions include conditions relating to drug and alcohol testing; attendance at vocational, educational employment or other programs; submitting to medical, psychiatric or psychological treatment; and non-association with specified persons.[27] The Act contemplates continuing judicial supervision, including through case conferences held under s 18ZI.
[27]Ibid s 18ZG(1)(a), (c), (d), (e).
The Act deals with compliance and non-compliance with conditions in a variety of ways. Section 18ZJ allows the Drug Court to ‘confer a reward’ by, for example, varying a condition, where the offender has fully or substantially complied with conditions, while s 18ZK allows the Drug Court to cancel both parts of a DATO if it considers that the offender has fully or substantially complied with the conditions of the order and the continuation of the order is no longer necessary to meet the purposes for which it was made.
Section 18ZL(1) provides that if the Drug Court is satisfied on the balance of probabilities that an offender has, without reasonable excuse, failed to comply with a condition attached to a DATO, it must take one of the following actions: confirm the treatment and supervision part of the order, vary that part of the order, impose a curfew, order that the offender perform up to 20 hours of unpaid community work, order that the offender remain at a specified place other than a secure custody facility for a period of up to 14 days or, subject to s 18ZM, order that the custodial part of the order be ‘activated’ for a period of between one and seven days.[28] That section does not apply if the breach of condition is constituted by the commission of an offence punishable on conviction by imprisonment for more than 12 months. In that circumstance, s 18ZN applies.
[28]Ibid s 18ZL(1).
Section 18ZN(1) provides that, if the Drug Court is satisfied beyond reasonable doubt that the offender has failed to comply with a condition by committing an offence punishable on conviction by imprisonment for more than 12 months, the Court must: take any of the actions listed under s 18ZL(1); or cancel the treatment and supervision part of the order and make an order activating some or all of the custodial part or cancel the custodial part and deal with the offender for each offence in respect of which the order was made in the first place. There are procedural requirements before an order can be made under this section, including a requirement that a notice of hearing concerning the cancellation be given to the offender, the informant (or equivalent) and prescribed persons.[29]
[29]Ibid s 18ZN(3).
Section 18ZP(1) provides the power to the Drug Court to cancel the treatment and supervision part of a DATO if it is satisfied on the balance of probabilities that:
(a) before the order was made, the offender’s circumstances were not accurately presented to either the Drug Court or the author of the drug and alcohol treatment order assessment report on the offender; or
(b) the offender will not be able to comply with a condition attached to the order because the circumstances of the offender have materially changed since the order was made; or
(c) the offender is no longer willing to comply with one or more conditions attached to the order; or
(d) the continuation of the treatment and supervision part of the order is not likely to achieve one or more of the purposes for which the order was made; or
(e) the offender has breached an order under subsection 18ZL(1)(c), (d) or (e).
When cancelling the treatment and supervision part of the order under s 18ZP(1), the Drug Court must, after taking into account the extent to which the offender has complied with that part of the order, either make an order activating some or all of the custodial part or cancel the custodial part and deal with the offender for each offence in respect of which the order was made.[30]
[30]Ibid s 18ZP(2).
In aid of the therapeutic purposes of the DATO and given the risk of non-compliance through continuing drug use and the importance of honesty and candour on the part of an offender, s 18ZS(1) provides that a person is not liable for prosecution for any offence comprising the unlawful possession or use of drugs of addiction as a result of any admission made in connection with any assessment of eligibility for the making of a DATO or in the course of a case conference.
It follows from the above survey of the relevant provisions that there are three circumstances in which the custodial component of a treatment order can be ‘activated’. The first is where there is non-compliance with a condition attached to the order but that is limited to a period of one to seven days.[31] The second is where the breach of condition constitutes an offence of a specified seriousness and requires the Drug Court to be satisfied beyond reasonable doubt of the failure to comply with a condition, in which case the Drug Court may cancel the treatment and supervision part of the order and activate some or all of the custodial part.[32] The third occurs where the Drug Court cancels the treatment and supervision part of the order in one or more of the circumstances identified in s 18ZP.[33] As already noted, the Court’s satisfaction for the engagement of that power is to be determined on the balance of probabilities.
[31]Ibid s 18ZL(1)(f).
[32]Ibid s 18ZN(1)(b)(i).
[33]Ibid s 18ZP(2)(a).
Something should be said about the meaning and operation of the provision relied on by the judge in this case to cancel the applicant’s DATO. The judge said on 20 November 2023 that he was ‘satisfied of s 18ZP(1)(c)’ because the applicant ‘has demonstrated his lack of willingness to continue to comply with the order’. The judge said that this gave rise to a discretion as to whether or not he would cancel the order and the matter was then adjourned.
At the time of making a DATO, the offender must agree in writing to the making of the order and to comply with the treatment and supervision part.[34] Section 18ZP(1)(c) deals with the circumstances in which the offender ‘is no longer willing to comply with one or more conditions attached to the order’. The use of the term ‘willingness’ may be contrasted with the different question as to whether the offender is able to comply or capable of complying with the order.
[34]Ibid s 18Z(3)(b).
An important part of the statutory context is that a DATO can only be made if the Drug Court is satisfied that the person is dependent on drugs or alcohol. Indeed, the legislative provisions proceed on an understanding that the offender’s dependency may impact on their ability to comply with the order. That follows at least from the specific way in which the Act deals with breaches of condition. Rather than a breach of condition (for example, not using illicit drugs) authorising the termination of the order, it provides for a narrow range of responses including activation of the custodial part but only up to a maximum of seven days.
Although there is a conceptual difference between an offender’s subjective willingness to comply and a compromised ability to comply due to the dependency itself or for some other reason, past non-compliance and the risk of future non-compliance may provide a factual basis to infer a lack of willingness on the part of the offender to comply with one or more conditions attached to an order. In that way, there may be a relationship between a present willingness to comply and past non-compliance. But the two should not be conflated.
Section 18ZP(1)(c), which concerns the offender’s willingness to comply, is not properly seen as providing a power to sanction an offender for past serious non-compliance. The Act deals with non-compliance in specific ways and limits the powers of the Drug Court in responding to breaches. Where there is a failure to comply with conditions, the Drug Court has the powers in ss 18ZL and 18ZN, which depend on the nature of the breach. Where the alleged non-compliance constitutes an offence punishable on conviction by imprisonment for more than 12 months, the Drug Court must be satisfied beyond reasonable doubt of the non-compliance before taking one of the required steps. It would subvert that structure and the evident statutory purpose in distinguishing between non-compliance and willingness to comply, as well as the different evidentiary standard that applies in the case of serious breaches, to treat s 18ZP(1)(c) as a power to sanction an offender for past serious non-compliance.
Similarly, repeated non-compliance with conditions may mean that the order is not likely to achieve one or more of the purposes for which the order was made in the first place and may therefore engage the power to cancel under s 18ZP(1)(d). Although the prosecution relied on both s 18ZP(1)(c) and (d) in its application to cancel the treatment and supervision part of the DATO, no findings were made in relation to paragraph (d) and it did not form a basis for the orders that were made.
It is convenient to commence with grounds 3 and 4.
Ground 3: Failure to give adequate reasons
Submissions
The applicant submits that the judge failed to give reasons for his decision to cancel the DATO and for his decision to impose the sentence by means of activating a portion of the custodial part of the order.
The applicant submits that it is not possible from the reasons for cancellation given on 9 February 2023 to identify how the judge weighed the breaches of the order against the ‘recent clear screens and apparent reframe’ when considering the statutory question of whether the applicant was ‘willing to comply’ with the order. The judge was informed about the fact of the breach of the non-association condition but not informed about the applicant’s intentions following the discovery of the breach. The judge found the breach of the non-association condition ‘concerning’ but did not, in terms, address the applicant’s willingness to comply.
In relation to the decision to activate part of the sentence, the applicant says that it is not possible to discern how the judge determined to activate the proportion of the sentence that he did. The judge failed to state his findings in relation to the participation of the applicant in the DATO and the weight to be attributed to that partial compliance.
The respondent submits that the adequacy of reasons must be viewed in light of the role the Drug Court plays in monitoring progress and encouraging compliance with the program. The respondent notes that the judge had many opportunities during the various hearings to obtain an understanding about the extent of compliance and to make it clear to the applicant what was required of him so that the order would not be cancelled, namely complete and sustained compliance. It follows that the judge ultimately cancelled the order because of ongoing non-compliance in those circumstances.
In relation to the activation hearing, the respondent submits that the sentence activation is a different process to resentencing for a contravention of a community correction order, in that the Court is not called upon to consider that sentence that would have been imposed had the order not been made. Further, the fact that the judge only activated 68 per cent of the custodial component shows that the judge took all relevant matters, including the extent of compliance, into account. The respondent notes that there were no submissions made on behalf of the applicant in relation to matters such as the applicant’s mental and physical health and the impact of the applicant’s gunshot wound. In those circumstances, it is submitted that the judge’s reasons were adequate.
Decision
Very recently, the High Court upheld an appeal on the ground that a trial judge had failed to give adequate reasons for a decision to reject a claim of public interest immunity.[35] The High Court recognised that the content and detail of reasons will vary according to the jurisdiction of the court and the subject-matter being considered.[36] The usual baseline for adequacy is that reasons given by a judge must identify ‘the principles of law applied by the judge and the main factual findings on which the judge relied’.[37]
[35]Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131; [2024] HCA 34 (‘Crupi’).
[36]Ibid 1136 [19] (Gageler CJ, Edelman and Beech-Jones JJ).
[37]Ibid, quoting DL v The Queen (2018) 266 CLR 1, 12 [32] (Kiefel CJ, Keane and Edelman JJ); [2018] HCA 26.
In the context of the evaluative judgment required in considering a public interest immunity claim, the High Court noted that the reasons must reveal the process of evaluation that has been undertaken and the reasoning involved in arriving at the relevant conclusions.[38]
[38]Crupi (2024) 98 ALJR 1131, 1136–7 [19]–[23] (Gageler CJ, Edelman and Beech-Jones JJ); [2024] HCA 34.
In considering this ground, it is important to acknowledge the task that the judge was engaged in at each of the two critical stages. The first involved the decision to cancel the DATO. The relevant statutory power to cancel relied on by the judge was contained in s 18ZP(1)(c) of the Sentencing Act.
The judge understood s 18ZP(1) as giving rise to a discretion. In other words, satisfaction of one or more of the conditions contained within it did not necessarily mean that an order for cancellation would be made. At one level, that approach may be accepted. The power is couched in terms which provide that the Drug Court ‘may’ cancel a DATO, and the use of the word ‘may’ connotes a discretion, subject to a contrary legislative intention.[39] Of course, accepting that s 18ZP(1) confers a discretion, the width of that discretion is another matter.[40] It is not easy, for example, to identify a circumstance in which the Drug Court might be satisfied that the offender is unwilling to comply with any conditions of a DATO but would nevertheless keep the order on foot.
[39]Interpretation of Legislation Act 1984, ss 4(1)(a), 45(1).
[40]See Victorian Building Authority v Andriotis (2019) 268 CLR 168, 195 [88] (Gageler J); [2019] HCA 22.
In this case, the judge said on 20 November 2023 that he was satisfied that the precondition for cancellation existed in that the applicant had demonstrated a lack of willingness to comply with the order. Notably, the judge did not identify which conditions the applicant was unwilling to comply with, although it may perhaps be inferred that the judge considered that he was unwilling to comply with any condition. Against that it may be noted that the applicant continued to attend some appointments and to supply urine samples on some occasions. The judge expressly identified that he had a discretion and adjourned the matter but it is not clear that what the judge had in mind would occur in the intervening period. It seems likely that what the judge had in mind was that the applicant would by assiduous compliance demonstrate an ongoing willingness to comply with the DATO. If that were the case, the question would not so much be about the exercise of a discretion but rather whether the precondition to the exercise of the power would cease to exist.
It is not possible to glean from the transcript the reasoning that the judge adopted in arriving at his conclusion that the applicant was unwilling to comply with one or more conditions of the order. For example, although the judge appears to have accepted that the applicant provided a forged medical certificate, it is not apparent how the judge reconciled the process in s 18ZN(1), which would presumably have applied on the basis that the applicant had failed to comply with a condition of the order by committing an offence punishable on conviction by imprisonment of more than 12 months, with the different question of whether the applicant was willing to comply with one or more conditions of the order.
Similarly, it is not apparent how the judge reasoned from the applicant’s past non-compliance to a finding in relation to the applicant’s subjective intent in circumstances where there was still some degree of compliance. The reasons do not expose the clear conceptual distinction referred to above between past non-compliance and present subjective willingness to comply nor explain how the former led the judge to his conclusion. In the absence of reasons explaining the pathway to the conclusion, it is not possible to assess whether there was an elision between non-compliance and a willingness to comply with conditions.
When the judge came to the sentence activation hearing, the submissions put on behalf of the applicant were inadequate. They did not address matters of significance to the exercise of the decision to activate the custodial part of the DATO.
In looking at the reasons given by the judge on the decision to cancel the DATO and to activate part of the custodial sentence, it is relevant to take into account the broader context and the high level of engagement that the Drug Court has through its supervisory role over offenders who are subject to DATOs. The thinking of the judge will no doubt be exposed during the review hearings and other interactions. That is what occurred in this case, where the judge repeatedly made his expectations as to the level of compliance explicit. However, the decision to cancel a DATO and to activate a sentence is a serious matter. It involves a judicial decision that may result in a period of incarceration in prison. It is necessary that the process of reasoning identified the critical factual material relied on by the judge and provided an explanation as to how those facts fitted within any statutory condition and, if there is a discretion, the matters that weighed upon its exercise.
It is not possible in the present case to discern the process of reasoning adopted by the judge in relation to the decision to cancel the DATO or for the period of activation that he identified. For the reasons given by Redlich JA in Raimondi v The Queen, it is not possible to use the judge’s report to supplement the reasons given at the time the judge made his decisions.[41]
[41][2013] VSCA 194, [59] (Osborn JA agreeing at [62], Macaulay AJA agreeing at [63]).
For that reason, ground 3 must be upheld.
Ground 4
The applicant submits that, although the judge made a finding on 20 November 2023 that the applicant was not willing to comply with the DATO, he did not return to that question when the time came to exercise the power in s 18ZP(1)(c) on 9 February 2024. Alternatively, he argues that, having formed that state of mind on 20 November 2023, the judge’s discretion was conditioned on the applicant being fully compliant with the treatment conditions, which was inconsistent with the statutory scheme which recognised, and accommodated in a specific way, a failure to comply with conditions depending on their seriousness. Alternatively, the applicant says that the judge’s findings on 20 November 2023 and 9 February 2024 did not amount to a finding that the applicant was not willing to comply with one or more conditions of the DATO.
The applicant also contends that the judge was required to but did not consider lesser options under s 18ZL before proceeding to cancel the DATO, and that the judge was required not to give any weight to the shooting of the applicant as the judge did not hear any submissions in closed court about that matter.
The respondent submits that, in considering whether the applicant was willing to comply with the conditions of the DATO, the judge took into account the fraudulent medical certificate, the applicant’s continued association with Ms Arena in breach of the order, the 21 days of sanctions and that the applicant seemed to be operating on his own terms rather than those of the Court.
The respondent submits that it was open to the judge to be satisfied that the applicant was no longer willing to comply with the conditions of the DATO on the basis of the provision of the forged medical certificate, that he had served a period of custody by way of sanction under s 18ZL(1)(f) and had not attended 40 urine screens and 13 appointments. The respondent says that the issue of the abduction and hospitalisation of the applicant was given little if any weight.
There is no doubt that the judge was confronted with an offender who had regularly breached conditions by continuing drug use and his association with Ms Arena. There is also the allegation concerning the forged medical certificate. As I have already found, the reasons do not adequately expose the judge’s process of reasoning. Due to the lack of reasons, I am left uncertain about whether the judge directed himself to the correct legal question, namely the subjective willingness of the applicant to comply with one or more conditions. The process by which the judge made a finding on that question and then adjourned the matter to enable the future exercise of a discretion, but without identifying the content of that discretion, suggests that the judge may have erroneously treated s 18ZP(1)(c) as providing for a sanction in the event of serious non-compliance. One of the problems that inadequate reasons gives rise to is that the affected person does not know how the decision was arrived at and whether the decision was arrived at through the correct application of the law. In my opinion, this is such a case.
Conclusion
The appropriate course is to grant leave to appeal, allow the appeal on ground 3, set aside the sentence (with the effect that the applicant will be restored to the DATO) and remit the determination of the Director of Public Prosecutions’ application to cancel the DATO to a judge of the Drug Court Division of the County Court.
Grounds 1 and 2 were argued together. Given that the DATO will be restored, the occasion for activation of the custodial component may not arise. It is enough to say for present purposes that the offending was serious and the applicant had a relevant and adverse criminal history and that, in the circumstances, it could not be said, on the material then before the judge, that the partial activation was manifestly excessive.
---
5
0